BARLEY MILL LAWSUIT
Charge-tainted rezoning case set to resume
By Adam Taylor
The News Journal 02/20/2013
A lawsuit seeking to reverse the controversial rezoning of part of the Barley Mill Plaza office complex will resume April 22 despite documents that New Castle County Executive Tom Gordon argued showed potential wrongdoing tied to the development.
Chancery Court Vice Chancellor Sam Glasscock III scheduled the trial date after he talked to lawyers in the case during a Tuesday conference call, said Sam Gray, the judge's law clerk.
Glasscock postponed a Feb. 4 hearing, when Sid Liebesman, the private attorney for Gordon's administration, told the court that county officials had discovered documents that showed potential wrongdoing connected to the October 2011 rezoning.
Glasscock delayed the case without seeing the documents, saying it could turn into "a criminal matter." He asked Liebesman for the files in a Feb. 11 letter and received them days later last week. Save Our County sued New Castle County and the property owner Barley Mill LLC in December 2011, saying the rezoning of 37 of the 92-acre tract at Del. 141 and Del. 48 violated state law. The group claims a traffic study of the roads near the plaza should have been completed before the County Council voted on the rezoning, which was approved 7-6 in October 2011. Liebesman wrote to state Attorney General Beau Biden about the documents on Feb. 4 and gave the documents to Biden's office last Wednesday , the same day the county gave them to Glasscock.
"There is a possibility that the documents evidence an obstruction of justice and other possible violations in connection with the rezoning process," Liebesman wrote in his letter to Biden . "It appears that the county's executive branch and Barley Mill (LLC) conspired to thwart the county's land use process and conceal documents from County Council and the public." Gordon announced that the county had changed its position in the case on Jan. 4, nearly two months after he took office. Gordon was against the project on the campaign trail last year and made it a central theme in successfully defeating incumbent County Executive Paul Clark during September's Democratic primary. The county's executive branch, a defendant in the lawsuit, now hopes Save Our County wins the case. The other defendants, Barley Mill LLC and the County Cou ncil, are pulling in opposite direction.
Before Gordon changed the county's legal stance, county attorneys had defended the rezoning against the suit for more than a year, when Clark was executive.
Clark's wife, Pam Scott, was Barley Mill LLC's attorney on the project for three years, until March 2011.
Among the documents produced by Gordon's staff are an unsigned agreement that Scott authored in 2010, which would have required the county to promote the Barley Mill project as part of the proposed rezoning and keep the agreement confidential. Also there are emails between Scott and county officials that Gordon argues show undue influence on county action.
The state attorney general's spokesman, Jason Miller, declined to comment Tuesday on the review of the documents, but said no one from the office discussed them with Glasscock.
Liebesman also declined comment Tuesday.
Gordon said he was not disappointed by Glasscock's ruling to allow the case to resume . "We want the case to move forward," Gordon said. "The documents have been released and I'm certain [Glasscock] will take all of it into consideration."
Scott could not be reached Tuesday. "I'm glad to see that the case is moving forward and that the vice chancellor is focusing on the issues of the case, not on the malarkey of the Gordon administration," said Clark, who has noted in the past that he recused himself from the Barley Mill project. Since Gordon said he hopes Save Our County wins, the county's executive branch and County Council each retained private attorneys.
Liebesman asked the court earlier this month for permission to amend the county's first reply to the Save Our County lawsuit, a move that would formalize Gordon's new position. Robert Katzenstein, the attorney representing the Council, and Christian Wright, attorney for Barley Mill LLC, have opposed allowing Liebesman to make the changes. They say Gordon's stance is not relevant to the question before the court: whether the county violated the law when it approved the rezoning.
Attorneys involved in the case have said they expect the trial to be a oneday affair, consisting solely of arguments by the lawyers and no witness testimony, because the case has already been argued in briefs.
Contact Adam Taylor at 324-2787 or